George Ferizis and Co Pty Limited v Taurean Financial Planning Pty Ltd

[2014] NSWDC 322

District Court

New South Wales

Medium Neutral Citation:	George Ferizis & Co Pty Limited v Taurean Financial Planning Pty Ltd [2014] NSWDC 322
Hearing dates:	14 November 2014
Date of orders:	14 November 2014
Decision date:	14 November 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) In respect of the Notice to Produce dated 12 September 2014, the plaintiff be relieved from producing for inspection documents: (a) answering the second half of each of paragraphs 1 and 2 of the Notice to Produce, so that the plaintiff’s obligation to produce documents for inspection extends only to: (i) Any and all authorised representative agreements between IFA Securities Pty Limited ACN 084 661 521 (IFA) and George Ferizis and Co Pty Limited and/or George Ferizis; and (ii) Any and all authorised representative agreements between IFA and George Ferizis and Co Pty Limited and/or George Ferizis and Andrew Mathews and/or Taurean Financial Planning Pty Limited. (b) Answering paragraph 9 of the Notice to Produce other than producing documents indicating the amount of insurance commission received by the plaintiff or George Ferizis from March 2006 to December 2010 for or in respect of Peter William Turner, Phak Hong Fung and Chung Kian Fung. (c) Answering paragraph 10 of the Notice to Produce save for Statements of Advice for Peter William Turner, Phak Hong Fung and Chung Kian Fung dated in the period 2007 to 2010 in respect of insurance. (2) Extend the time for service of the defendants’ affidavits to 5pm on 18 November 2014. (3) The costs of the application be costs in the proceedings. (4) Note the matter is to be the subject of a mediation scheduled for later in November 2014 and is listed for hearing on 17 February 2015.
Catchwords:	INTERLOCUTORY ORDERS – notice to produce – relief from production – amendments to notice - costs
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 21.11, r 42.7
Category:	Procedural and other rulings
Parties:	George Ferizis & Co Pty Limited (plaintiff) Taurean Financial Planning Pty Ltd (first defendant) Andrew Mathews (second defendant)
Representation:	Counsel: Mr A Korakis (plaintiff) Ms A F Knox (defendants) Solicitors: A Plus Legal (plaintiff) SS Legal (defendants)
File Number(s):	2012/208179
Publication restriction:	None

Judgment

1. The plaintiff, George Ferizis & Co Pty Limited (“Ferizis & Co”), sued the defendants, Taurean Financial Planning Pty Ltd (“Taurean”) and Andrew Mathews, alleging that certain commissions to which Ferizis & Co was entitled were received or retained by the defendants. Taurean and Mr Mathews issued a notice to produce to Ferizis & Co dated 12 September 2014 seeking documents answering any of ten paragraphs in the notice. Documents have been produced in relation to paragraphs 3 to 8 but the parties remain in contest in respect of the documents answering paragraphs 1, 2, 9 and 10.

2. Taurean and Mr Mathews filed a notice of motion dated 23 October 2014 seeking an order that "the plaintiff comply with items 1, 2, 9 and 10 of the Notice to Produce for Inspection". That order seems to be otiose. Rule 21.11 of the Uniform Civil Procedure Rules 2005 requires the party receiving a notice to produce, in this case Ferizis & Co, to produce the documents for inspection unless the Court otherwise orders.

3. During the course of the hearing, Ferizis & Co sought an order relieving it from answering paragraphs 1, 2, 9 and 10, which is the more appropriate procedure to deal with the question currently before the Court. Taurean and Mr Mathews were content for the issue to be dealt with under the plaintiff’s motion.

4. During the course of argument the parties made a number of concessions about what documents were required and what could be provided. In respect of paragraphs 1 and 2 of the notice to produce Taurean and Mr Mathews accepted that there were parts of the notice that went beyond the issues raised in the pleadings. Accordingly, I propose to order that Ferizis & Co be relieved from producing for inspection documents answering the second half of each of those two paragraphs. The obligation of Ferizis & Co to answer those paragraphs is to not extend to producing for inspection documents other than as follows:

"(1) Any or all authorised representative agreements between IFA Securities Pty Ltd, ACN 084661521 (IFA) and George Ferizis and Co Pty Ltd and/or George Ferizis."

"(2) Any and all authorised representative agreements between IFA and George Ferizis and Co Pty Ltd and/or George Ferizis and Andrew Mathews and/or Taurean Financial Planning Pty Ltd."

5. Ferizis & Co asserts that there are no documents that answer the notice in those terms and thus claims to have complied with the obligation.

6. In respect of paragraph 10, Ferizis & Co is content to produce documents so long as the period is limited to between 2007 to 2010, rather than between 2007 to 2013 as it currently reads, and the obligation is limited to statements of advice in respect of insurance. Taurean and Mr Mathews accept those limitations on concession by Ferizis & Co that it makes no claim in respect of superannuation. Accordingly, paragraph 1 is limited to the period 2007 to 2010, and in respect of statements of advice relating to insurance.

7. That leaves paragraph 9 which should be limited to documents:

"Indicating the amount of insurance commissions received by Ferizis & Co or George Ferizis in the period November 2006 to December 2010 inclusive, for or in respect of Peter William Turner, Phak Hong Fung and Chung Kian Fung."

8. Taurean and Mr Mathews conceded that they have not complied with directions concerning the service of their evidence, but assured the Court that their evidence would be served by the close of business on Tuesday. In those circumstances, I extend the time for service of the defendants' affidavits to 5pm on Tuesday, 18 November 2014.

9. As to costs, I refer to r 42.7(1) of the Uniform Civil Procedure Rules 2005 which provides that:

“42.7 Interlocutory applications and reserved costs

(cf SCR Part 52A, rule 16; DCR Part 39A, rule 22; LCR Part 31A, rule 17)

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.”

10. To my mind this rule indicates some leaning in interlocutory applications towards the proposition that costs be costs in the proceedings, other than in circumstances where an application clearly should not have been brought, or should not have been resisted.

11. I propose to order that the costs of the applications be costs in the proceedings.

12. Accordingly, the orders of the Court are:

1. In respect of the Notice to Produce dated 12 September 2014, the plaintiff be relieved from producing for inspection documents:

1. answering the second half of each of paragraphs 1 and 2 of the Notice to Produce, so that the plaintiff’s obligation to produce documents for inspection extends only to:

1. Any and all authorised representative agreements between IFA Securities Pty Limited ACN 084 661 521 (IFA) and George Ferizis and Co Pty Limited and/or George Ferizis; and

2. Any and all authorised representative agreements between IFA and George Ferizis and Co Pty Limited and/or George Ferizis and Andrew Mathews and/or Taurean Financial Planning Pty Limited.

2. Answering paragraph 9 of the Notice to Produce other than producing documents indicating the amount of insurance commission received by the plaintiff or George Ferizis from March 2006 to December 2010 for or in respect of Peter William Turner, Phak Hong Fung and Chung Kian Fung.

3. Answering paragraph 10 of the Notice to Produce save for Statements of Advice for Peter William Turner, Phak Hong Fung and Chung Kian Fung dated in the period 2007 to 2010 in respect of insurance.

2. Extend the time for service of the defendants’ affidavits to 5pm on 18 November 2014.

3. The costs of the application be costs in the proceedings.

4. Note the matter is to be the subject of a mediation scheduled for later in November 2014 and is listed for hearing on 17 February 2015.

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Decision last updated: 08 May 2015